Citation Nr: 22008059 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 16-46 676 DATE: February 11, 2022 ORDER Service connection for an acquired psychiatric disability, to include depressive disorder, is granted. FINDING OF FACT The Veteran's acquired psychiatric disability, to include depressive disorder, began during active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include depressive disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.381, 4.125(a), 4.127. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1984 until his discharge under honorable conditions in March 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 decision a Regional Office of the United States Department of Veterans Affairs (VA). In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). At multiple times, the Board has remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to obtain outstanding records from the Social Security Administration, obtain VA medical examinations and opinions addressing the Veteran's psychiatric disability, and to follow additional VA regulatory procedures. The Board's remand directs have been accomplished. The case now returns to the Board for adjudication. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, ___ F.4th ___, 2021 U.S. App. LEXIS 37307, at *11; 2021 WL 5983923 (Fed. Cir. Dec. 17, 2021) (en banc). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Analysis First element: A current disability For VA disability compensation benefits, all mental disorders must be diagnosed in accordance with Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), of the American Psychiatric Association. 38 C.F.R. § 4.125(a). On review of all relevant medical records, the Board finds conflicting evidence addressing whether the Veteran has a valid psychiatric disorder under the DSM-5. First, according to 1986 in-service medical records, he was diagnosed with antisocial personality disorder. A 2011 VA psychiatrist confirmed the disorder. An October 2011 VA examiner diagnosed the Veteran with adjustment disorder with depressed mood, and paranoid personality disorder. A March 2012 VA psychologist opined that the Veteran met the criteria for antisocial personality disorder based on medical history and an in-person examination. In 2016, VA mental health professionals ruled out an unspecified personality disorder but diagnosed him with a specified personality disorder with schizoid traits. In December 2019 and November 2020, contracted VA examiners did not diagnose the Veteran with any psychiatric disorders. It is important to state that a personality disorder is not a "disease[] or injur[y] within the meaning of applicable legislation" to constitute compensable disability. 38 C.F.R. § 3.303(c). 38 C.F.R. § 4.127 provides that, although benefits may not be granted for a personality disorder, "disability resulting from a mental disorder that is superimposed upon . . . a personality disorder may be service-connected." VA has explained that the existence of a mental disorder superimposed on a personality disorder could result in compensation for disability resulting from both disorders if the superimposed disorder is service connected and "it is not possible to separate the effects of the conditions," in which case those effects would be "attributed to the service-connected condition." Schedule for Rating Disabilities; Mental Disorders, 61 Fed. Reg. 52,695 (Oct. 8, 1996) (Final Rule). Despite the most recent VA examinations, the Veteran's VA medical treatment records indicate he has a personality disorder, although it unclear to what degree, which would not constitute a disability on its own. Nevertheless, the Veteran submitted a private mental health evaluation, dated July 2, 2021, completed by Dr. M.C., a psychiatrist. Dr. M.C. stated that he reviewed the Veteran's medical records, service records, VA examinations, and all other relevant information associated with the Veteran's claims file. He also completed an in-person examination of the Veteran. After reciting the Veteran's medical chronology and in-person examination results, he opined that the Veteran's in-service diagnosis of a personality disorder was "entirely incorrect." He explained that when defining personality disorders, "there must be a pattern of behavior that is 'stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood.'" (Citing DSM-5). He found no evidence the Veteran had such a disease or disorder in his childhood. Second, the Veteran's psychiatric symptoms developed after his severe in-service medical problems. He provided additional analysis in support of his conclusion that the clinical circumstances were "utterly inconsistent with a personality disorder diagnosis." Therefore, Dr. M.C. opined the Veteran's appropriate diagnosis, then and now, was "depressive disorder due to another medical condition (chronic pain syndrome), with major depression-like episode[s]." The Board finds Dr. M.C.'s opinion and supporting rationale are more credible and probative than the Veteran's VA treating and examining mental health professionals. Those mental health professionals did not discuss in detail their respective diagnoses, as compared to Dr. M.C. Accordingly, the Board finds that the Veteran does have an acquired psychiatric disorder, which is depressive disorder due to another medical condition (chronic pain syndrome), with major depression-like episodes. The VA mental health professionals' diagnoses of a personality disorder are not accepted as accurate under the particular facts of this case. Therefore, the first element is met. Second element: An in-service event, injury, or illness, or aggravation thereof As discussed, the Board finds Dr. M.C.'s mental health evaluation is highly credible and probative. Addressing the onset of the Veteran's mental health symptoms, Dr. M.C. specifically opined that the Veteran's symptoms began in service, as highlighted by his in-service mental health treatment and (incorrect) diagnosis. The Board finds that the Veteran's in-service psychiatric disorder was not a personality disorder as recorded, but rather depressive disorder as explained by Dr. M.C. Therefore, his depressive disorder had its onset in service. Thus, the second element is satisfied. Third element: A causal link As explained thoroughly by Dr. M.C. in his medical opinion, the Veteran's depressive disorder had its onset in service due to the chronic pain he experienced as part of his military service. Based on review of the Veteran's entire medical and military history, as well as the in-person examination of the Veteran, Dr. M.C. has credibly opined that the Veteran's current depressive disorder is a continuance of the depressive disorder he experienced in service. The Board finds this the most credible and probative evidence of record addressing nexus. Therefore, the third element is satisfied. (Continued on the next page) Accordingly, service connection acquired psychiatric disability, to include depressive disorder, is granted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.